Florida has very favorable surrogacy/gestational carrier statutes that recognize contracts for traditional surrogates, egg donors, sperm donors and gestational carriers. The parties to the contracts must be at least 18 years of age. According to Fla. Stat. § 742.14, the contract for Donor of Egg, Sperm and Pre-embryos requires the relinquishment of all maternal or paternal rights and obligation of the resulting child or children. The statute permits only a reasonable compensation directly related to the donation.
According to Fla.Stat. § 742.15, the contract for gestational surrogacy will be enforceable only if the ‘commissioning couple’ (the intending parents of the child) be over the age of 18, married to each other, and that a physician licensed in Florida has determined that, ‘within reasonable medical certainty’:
1) the commissioning mother cannot physically gestate a pregnancy to term;
2) the gestation will cause a great risk to the physical health of the commissioning mother;
3) the gestation will cause a risk to the health of the fetus.
Moreover, the gestational carrier must be over the age of 18. The contract should include that the gestational carrier agrees to submit to reasonable medical evaluation, treatment and prenatal care, that the commissioning parents agrees that the gestational carrier shall be the sole source of consent with respect to the clinical intervention and management of her pregnancy, that she relinquishes her parental rights of the child upon the birth of the child and assists the commissioning couple in the birth certificate proceeding. The Statute also requires that if either or both of the commissioning couple is the biological parent of the child ‘the couple agrees to accept custody of and assume full parental rights and responsibilities of the child immediately upon the child’s birth regardless of any impairment of the child.’
According to Fla.Stat. § 742.16, a commissioning couple and the treating physician shall enter into a written agreement that provides for the disposition of the commissioning couple’s eggs, sperm, and preembryos in the event of a divorce, the death of a spouse, or any other unforeseen circumstance.
The statute permits expenses for medical, legal, psychological, psychiatric care and ‘reasonable living expenses’ of the gestational carrier to be provided by the intending parents of the child. Florida has codified the birth certificate process enabling couples to establish their parental status of the child without a paternity/adoption process. According to Fla.Stat. § 742.17 the commissioning couple, within three days after the birth of the child, can petition for a birth certificate with their names as the biological parents of the child.
Florida also explicitly allows traditional surrogacy agreements. Those agreements are called pre-planned adoption agreements. According to Fla.Stat.63.212, preplanned adoption agreements shall not ‘effect the final transfer of custody of a child or final adoption of a child, without review and approval’ by the Department of Health and Rehabilitative Services (DHRS) and the court and must comply with other provisions of Florida’s adoption laws. The consent of the surrogate to place her child for adoption with the intending parents can be executed at the time of entering into the Preplanned Adoption Agreement but is not considered binding until seven days after the birth of the child. The surrogate mother’s right to rescind within the seven day period following birth must clearly be made aware to her.
The Preplanned Adoption Agreement shall include, but need not be limited to the following:
1. That the surrogate (referred to in the statute as the voluntary mother) agree to become pregnant by the fertility technique specified in the agreement. This has been defined in the statute as ‘artificial embryonation, artificial insemination, whether in vivo or in vitro, egg donation, or embryo adoption.’ The surrogate further agrees to bear the child and to terminate her parental rights to the child through a written consent executed at the time of entering the agreement with the conditions as stated above.
2. The surrogate agrees to obtain reasonable medical care during the pregnancy and to adhere to reasonable standards of prenatal care, abstain from drinking, smoking, consumption of excess caffeine, etc.
3. The surrogate acknowledges that she is aware that she will assume parental rights and responsibilities for the child if the intended father and mother terminate the agreement before final transfer of custody is completed, or if a court determines that the intended parent who was to be the biologically-related parent is not the biological parent, or if the court does not approve the Preplanned Adoption Agreement.
4. The intended father, if also the biological father, acknowledges that he is aware that he will assume parental rights and responsibilities for the child if the agreement is terminated for any reason by any party before final transfer of custody is completed or if the Agreement is not approved by the court.
5. The intended parents must both acknowledge that they may not receive custody or parental rights of the child if the surrogate terminates the Agreement or if she rescinds her consent to the stepparent adoption within seven days after the birth of the child.
6. The intended parents may agree to pay all reasonable legal, medical, psychological, or psychiatric, and reasonable living expenses of the surrogate.
7. The intended parents agree to accept custody of and assert full parental rights and responsibilities of the child immediately upon the child’s birth, regardless of any impairments of the child.
8. The intended parents have the right to specify the blood and tissue type test to be performed to determine that at least one of them is the biological parent of the child.
9. The Agreement must state that it can be terminated at any time by any party.
A Preplanned Adoption Agreement may not include any provisions that would reduce the amount paid to the surrogate if the child is stillborn or is born impaired or provide for a bonus payment for any reason, such as the delivery of a healthy child. It also prohibits the inclusion of any provision requiring the Surrogate to terminate the pregnancy.
After the birth of the child, a paternity hearing is held. The paternity hearing is followed by a stepparent adoption in the state where the couple resides.